QBE Insurance (Australia) Limited v Castino
[2023] NSWPIC 416
•16 August 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | QBE Insurance (Australia) Limited v Castino [2023] NSWPIC 416 |
| CLAIMANT: | Lauren Castino |
| INSURER: | QBE Insurance |
| MEMBER: | Ray Plibersek |
| DATE OF DECISION: | 16 August 2023 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claimant was a pedestrian hit at low speed by a car; she sustained a fractured left talus in her left leg and wore a moon boot and a leg brace for a period of between four and six weeks; insurer accepted liability for common law damages; past economic loss was agreed between the parties at $6,200; $30,000 agreed as a buffer for future economic loss; claimant received total of $37,194 with $2,400 deducted for repayment of past weekly benefits paid by insurer; claimant understood binding nature of the settlement and was precluded from making a further claim for damages for the accident; Held – that the offer of settlement was satisfactory and was approved under section 6.23(2)(b). |
| DETERMINATIONS MADE: | Settlement Approval Issued under s 6.23 of the Motor Accident Injuries Act 2017 Proposed settlement is approved s 6.23(2)(b) of the Motor Accident Injuries Act 2017 |
INTRODUCTION
On 9 June 2020 Lauren Castino (the claimant) sustained injury in a motor vehicle accident at Morgan Street, Marrickville (the accident). The claimant was crossing Morgan Street about
6 pm when she was hit at low speed by a car. She sustained a fractured left talus in her left leg and wore a moon boot and a leg brace for a period of between four and six weeks.Ms Castino has made a claim against QBE Insurance (the insurer) the insurer of the at fault vehicle, for lump sum damages.
The insurer has wholly accepted liability for the claim for common law damages.
Ms Castino and the insurer have reached agreement as to settlement of the claim for damages.
Because Ms Castino is not represented by a lawyer, her settlement must be approved in accordance with the MAI Act.
The insurer lodged the application for approval of the settlement, and it was referred to me for consideration.
The insurer has not conceded Ms Castino has sustained a whole person impairment (WPI) greater than 10% and accordingly there is no entitlement to recover damages for non-economic loss. The claim for damages is limited to past and future economic loss.
THE RELEVANT LAW
Section 6.23(2) and (3) of the Motor Accident Injuries Act 2017 (MAI Act) requires approval of the settlement and I am not to approve the settlement unless I am satisfied it complies with any of the requirements of the MAI Act or the Guidelines.
Clause 7.37 of the Guidelines states I must be satisfied as to the following:
(a) the proposed settlement is just, fair and reasonable and within the range of likely potential damages assessments for the claim were the matter to be assessed by a claims assessor, taking into account the nature and extent of the claim and the injuries, disabilities, impairments and losses sustained by the claimant, and taking into account any proposed reductions or deductions in the proposed settlement, and
(b) the claimant understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.
DOCUMENTS CONSIDERED
I have considered the documents produced by the insurer including: submissions dated
2 August 2023, draft settlement agreement, police report, medical reports from Dr Gupta and Dr Rimmer, hospital notes and all of the other documents produced by the insurer marked A1 – A15.
REVIEW OF THE EVIDENCE
Ms Castino currently works for Sydney University and is aged in her early 30s.
Following the accident Ms Castino was transported by car to Royal Prince Alfred Hospital.
The clinical records of Royal Prince Alfred Hospital reported Ms Castino sustained a fracture of the left talus in her left leg and a swollen and injured left foot and left ankle from a car tyre driving over it. The claimant’s left knee and left ankle were X-rayed.
On 19 June 2020 Ms Castino underwent an MRI examination of left knee. Dr Healy found a mildly comminuted and displaced fracture involving the lateral tibial plateau and a mild depression involving a lateral fragment with a step deformity within the joint measuring 3 mm.
On 11 June 2020 a CT scan of Ms Castino’s left foot by Dr Spencer found no fracture or dislocation. There was no ankle joint effusion or significant overlying soft tissue swelling.
On 6 January 2021 an MRI examination of Ms Castino by Dr Koulouris concluded that there was no meniscal tear nor medial compartment pathology identified to account for the patient’s present complaint.
A Certificate of capacity/certificate of fitness by Dr Fattore dated 16 August 2020 noted the claimant was fit for pre-injury work from 16 August 2020.
In another certificate dated 9 December 2021 Dr Fattore noted that the claimant continued to be fit for pre-injury work but advised to continue physiotherapy to correct pain in left leg most likely caused by gait due to knee injury. Dr Fattore also commented that the claimant is able to do full sedentary duties but has some limitations in exercise capacity.
Ms Castino was referred for physiotherapy treatment. She underwent a course of physiotherapy. The claimant's physiotherapist Emma Lothian reported on 1 September 2021 that Ms Castino is continuing treatment. Her functional limitations remain regarding an inability to run or participate in basketball which she played prior to her injury. She was still reportedly experiencing medial knee pain and has reduced strength around her leg. She is still able to perform her full work duties as a job sedentary and her ongoing knee pain does not affect her ability to work.
The claimant's treating orthopaedic surgeon Dr Gupta reported on 20 January 2021 that
Ms Castino is doing quite well and that the MRI is very reassuring as it shows no pathology on the medial side of the knee. Dr Gupta noted that the claimant still had some tenderness and muscle weakness but this would improve with time.On 12 October 2022 orthopaedic surgeon Dr Rimmer reported on Ms Castino’s condition.
Dr Rimmer reported that Ms Castino described her left knee is being 90% fine with occasional aches. She reported her left foot as being okay. Ms Castino reported that she completed her physiotherapy treatment in December 2021. Dr Rimmer suggested a left knee cortisone injection for diagnostic and treatment purposes. Dr Rimmer concluded that
Ms Castino had made a full recovery. Dr Rimmer assessed her at 2% WPI for a displaced plateau fracture of the left knee and 0% WPI for the left foot and ankle.
Economic loss evidence
The claimant’s past economic loss was agreed between the parties at $6,200. The parties also suggested an alternative way of calculating the past economic loss was four weeks loss of income at $1,285 per week plus superannuation of 11%.
The insurer submitted that it would allow tax withheld for the Fox v Wood component of $994.
The insurer seeks an amount of $2,431.35 to be deducted representing the amount of past weekly and efforts paid.
THE PROPOSED SETTLEMENT
The insurer calculated the offer of settlement in the sum of $37,194. The claimant has received statutory benefits in the sum of $2,431.35 paid for by the insurer. The insurer will be entitled to receive credit for the sum of $2,431.35 out of the settlement sum.
Past economic loss
The claimant’s past economic loss was agreed between the parties at $6,200. The parties also suggested an alternative way of calculating the past economic loss was four weeks loss of income at $1,285 per week plus superannuation of 11%.
The insurer made an allowance of $994 for the Fox v Wood component representing taxation payments deducted from statutory weekly payments.
Future economic loss
In calculating future economic loss, the insurer has offered a buffer of $30,000 or as an alternative $120 per week for five years equating to $231.50 plus superannuation of 12% less vicissitudes of 15% rounded up.
Teleconference on 14 August 2023
I held a teleconference on 14 August 2023. Ms Castino appeared in person and the insurer was represented by Mr Elven Lal as the insurer’s settlement officer.
At the teleconference I asked Ms Castino a number of detailed questions including: about how long she was off work; what her past and current work is; whether she still suffers from any pain or disability that affects her current work or daily living activities. I also explained that if the settlement is approved she is entitled to five years of ongoing medical care and expenses in the current scheme which then transfers to the care scheme. I also asked why she had not engaged lawyers and she said that she understood the matter was quite straightforward. Ms Castino stated that she currently has no stairs in the house where she lives and that her daily living activities are not affected by her injuries. I asked about
Dr Rimmer’s comment reporting that she was 90% better. Ms Castino replied that she has some ongoing concerns about aches in her leg and knee and that she still can’t fully participate in running and basketball which she had done previously.I asked Mr Lal for the insurer to read out and explain the amounts offered by the insurer and what each component or head of damage was. He also agreed that if Medicare or Centrelink or any other agency required any further repayments insurer would not deduct any of this from the amount to be paid out to the claimant.
I asked Ms Castino what she understood the settlement to include. She explained that there was no allowance for non-economic loss. She also explained that she understood the amount of past economic loss was agreed at $6,200, that there would be a payment for tax withheld and that the figure of $30,000 had been agreed as a buffer for her future economic loss. Ms Castino said that she would receive a total of $37,194 with an amount of approximately $2,400 to be deducted for repayment of past weekly benefits previously paid by the insurer.
Towards the end of the teleconference I asked both parties if they had any further submissions comments or questions. Ms Castino said that she was a little worried about the potential for ongoing pain or disability as her treating orthopaedic surgeon had said that she was likely to experience osteoarthritis from an earlier age as a result of her injury.
Ms Castino asked for the settlement to be approved.
SHOULD I APPROVE THE SETTLEMENT
I am satisfied Ms Castino is aware and understands the settlement finalises her entitlement to weekly benefits and to common law damages under the MAI Act.
I am satisfied that Ms Castino is aware of her right to have her reasonable treatment expenses paid for the remainder of her life. Whilst the insurer is only liable to pay statutory benefits including treatment expenses for five years, thereafter the claim may be transferred to Lifetime Care and Support who will be liable for ongoing reasonable treatment expenses.
The insurer assured me at the teleconference that it will not deduct and pay monies to Medicare under the Health and Other Services (Compensation) Act, 1995 (Cwlth) from the settlement sum. In the event a Notice of Charge is raised by Medicare for reasonable and necessary treatment expenses the insurer will pay the charge in addition to the settlement sum.
CONCLUSION
I am satisfied the proposed settlement is just, fair and reasonable and within the range of likely potential damages assessments if the claim was to proceed to assessment taking into account the nature and extent of the claim, the injuries, disabilities, impairments and losses sustained by Ms Castino.
I am satisfied Ms Castino is aware she can seek legal advice but does not wish to do so.
I am satisfied Ms Castino understands the binding nature of the settlement and that she will be precluded from making a further claim for damages arising out of the accident. I am satisfied Ms Castino is willing to accept the proposed settlement.
Accordingly, pursuant to s 6.23(2)(b) of the MAI Act, I approve the settlement of Ms Castino’s claim for damages in the sum of $37,194 with an amount of $2,431.35 to be deducted for repayment to the insurer for past weekly benefits.
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